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Housing Land Supply – continuing conflict and some judicial clarity

Housing Land Supply – continuing conflict and some judicial clarity

Housing land supply, and in particular planning authorities’ obligations at all times to maintain an effective 5-year supply, continues to be a source of tension and dispute between developers and authorities.

This tension partly arises out of the fact that calculating and evidencing supply, and how the relevant policies should operate, are not very well understood. Add to this that Scottish Ministers withdrew their draft advice on how housing land supply should be calculated, and it is no wonder conflicts have ended up in court.

There have been two cases of note this year: Gladman Developments successful appeal against a Reporter’s refusal of their proposed Strathblane development, and Graham’s Dairy’s successful appeal against the refusal of their proposed redevelopment of land at Airthrey Kerse. Our Head of Planning, Alasdair Sutherland, acted for Gladman and Graham’s Dairy in both appeals.

The court’s decisions have brought some clarity to two particular issues: (1) how 5-year supply should be calculated; and (2) the application of the so called ‘tilted balance’.

Calculation: methodology

One of the key points in Gladman’s case was whether the 5-year housing land supply calculation should take account of past completions and any past under-supply. Gladman’s position was that it should, whereas Stirling Council’s position was it should not. The difference being that the former resulted in a shortfall in 5-year housing land supply, and the latter did not. The significance of the point is that a shortfall triggers the ‘tilted balance’ (explained later in this article) and provides a basis for permission being granted for a proposal that might otherwise be contrary to policy.

As already alluded to, in November 2017, the Scottish Ministers withdrew their "Draft Planning Delivery Advice: Housing and Infrastructure" which provided guidance (albeit in draft only) on how 5-year effective housing land supply should be calculated (interestingly, not taking account of past completions). In the absence of national guidance, matters rest with PAN 2/2010 Affordable Housing and Housing Land Audits, which addresses methodology to a degree, but stops short of providing a method of calculation.

The court in Gladman also stopped short of determining which methodology was correct on the basis that this is a matter of policy and not for the courts to decide. However, the court did determine that the Reporter was wrong to consider herself bound by the Council’s methodology. The court also very helpfully determined that she did not have proper regard to previous decisions in which the Scottish Ministers and Reporters had decided that past completions and any past under-supply should be taken into account. The effect of that particular finding is that if a planning authority wishes to exclude past completions, it must explain and justify why it is taking a different approach.

Calculation: evidencing supply

In terms of evidencing the supply, a recent Reporter’s appeal decision in relation to a residential development of 100 units at Wishaw Low Road in Cleland by WB Properties Scotland Limited provided an interesting discussion on the use of the Scottish Government All Sectors New Build Completions data.

The developer pointed out that the Scottish Government data, based on the number of Building Standards Completion Certificates issued, showed significantly less completions than the Housing Land Audit (“HLA”). North Lanarkshire Council argued the Building Standards data did not reflect the true position and that the authorities within the Clydeplan area carried out their own audit of housing completions which included visits by planning staff. The Council also sought corroborating evidence from Council Tax first registrations. The Council pointed out the search program used to identify Completion Certificates had not picked up recent changes in the regulations. A recalibrated program produced figures closer that of the HLA. The council has raised this perceived discrepancy with the Scottish Government.

Despite the uncertainties, it was the Reporter’s view that the Completion Certificates data provides a consistent Scotland-wide methodology. He considered that the Scottish Government figures may present a “worst-case” scenario but, as there is no recognised alternative method, they cannot be discounted. Particularly given the importance placed on not over-estimating likely completions in PAN 2/2010.

‘The Titled Balance’

‘The Tilted Balance’ is a phrase well understood south of the border, but has gained prominence in Scotland following the decision in Graham’s Dairy.

Scottish Planning Policy provides for a presumption in favour of development that contributes to sustainable development, and also that planning authorities should ensure a generous supply of land for house building is maintained and that at any point in time there is an effective 5-year housing land supply.

Where there is a shortfall in the 5-year housing land supply, relevant Local Development Plan policies will be considered out of date, and the status of the sustainable development presumption is elevated from a ‘material’ to a ‘significant material’ consideration. In order to refuse an application in these circumstances, a decision-maker must show that there are adverse impacts which would significantly and demonstrably outweigh the benefits of the development when assessed against the wider policies. This requirement results in a ‘tilted balance’ in favour of granting permission.

The effect of the Graham’s Dairy decision is that it has been made very clear to decision-makers the ‘tilted balance’ is to be taken seriously. In particular, they must address how they approached the exercise and the extent to which they consider adverse impacts significantly and demonstrably outweigh the benefits of the development if they are minded to weigh against granting permission for a development which otherwise contributes to sustainable development.

Comment

Discussions on further national guidance setting out the correct methodology are ongoing. In the meantime, developers and land promoters should be bold in using these recent cases and appeal decisions to support applications which might not otherwise have policy support where there is arguably a shortfall in 5-year housing land supply.

Steven Stewart
Associate, Planning

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